Canada does seem to be having persistent problems with the law. The Supreme Court of Canada ruled in its Delgamuukw and Marshall decisions, in 1997 and 1999, that First Nations peoples who never made treaties ceding their lands and resources to the Crown retain aboriginal title to their ancestral territories.1

But Canadian governments, federal and provincial alike, have often simply ignored inconvenient court rulings on what constitutes the law of the land. The Burnt Church fishery dispute of 1999-2002 was nudged toward violence by the Department of Fisheries and Oceans’ refusal to accommodate Mi’kmaq rights confirmed by the Marshall decision; and in recent months the New Brunswick government, the RCMP, and the lower courts that have glibly handed out injunctions criminalizing any obstruction of fracking exploration on unceded Mi’kmaq land, appear again to have been violating the law.

Two leading experts in natural resources law have commented on this recent bout of lawlessness. Bill Gallagher has remarked that there are “seven high-level court cases” which the natives won “on a very profound point of law,” with the courts giving “a series of admonitions” to the losing parties, “governments and interveners and industry”—despite which the New Brunswick government has left these court decisions “sitting on shelves.”2And Michael McClurg has written that in the Elsipogtog case, “the rule of law […] would arguably dictate” that the protesters had every right to be where they were, while others, “including the Crown and resource extraction companies, are trespassers.”3

What are we to do when the very people who should be applying the rule of law fling it out the window, and when foolish or malignant pundits like Rex Murphy or Ezra Levant do their best to obstruct public understanding of what’s going on?

But a further problem arises from the fact that even when governments respect the law, its structures may embody and legitimize wrongs and injustices.

Only in Utopia, the land of Cockagne, or the Big Rock Candy Mountain are legality and justice wholly one and the same. Think of the words of the prophet Amos that Martin Luther King famously quoted in his “I have a dream” speech. Amos didn’t say “Let legality roll down”: he said, “Let justice roll down like waters, and righteousness like a mighty stream” (Amos 5: 24). What the civil rights movement was struggling against, in the name of justice and righteousness, was quite precisely a perverted legality: the laws and state practices of Jim Crow racism.

The Canadian legal system has moved towards remedying some institutionalized features that run counter to justice. Attempts are being made to provide restorative justice through Gladue courts; and the Royal Commission on the Donald Marshall, Jr. Prosecution (1989) declared that “Native Canadians have the right to a justice system […] which has respect for them, and which dispenses justice in a manner consistent with, and sensitive to their history, culture and language.”4

On the level of resource issues, it’s clear that a system of law and justice that was respectful of and sensitive to native history, culture and language would not for a moment permit practices like fracking. But the corporations involved in resource extraction are bound by corporate law to understand value as a matter of maximizing shareholders’ profits—and to discard the real values of justice, respect for aboriginal title, and the responsibility to preserve the land for future generations.

The hollowness of this perverted legality can be exposed by comparison to higher understandings of what binds us to the land we belong to.

We can find such forms of understanding in the Mi’kmaq system of justice (koqqwaja’ltimk), one of whose principles, as Leslie Jane McMillan explained in her 2002 doctoral thesis on Mi’kmaq Legal Consciousness, is sharing (utkunajik) within a common territory (netukulimk).5 We can find them, perhaps more fully elaborated, in the Six Nations or Haudenosaunee Kaienereh’ko:wa, known in English as the Great Peace.

In 2006, two women of the Six Nations, Katinies and Kahentinetha, explained their intervention in an issue involving environmental degradation in the Haldimand Tract lands as prompted by the Kaianereh’ko:wa‘s Wampum 44, which defines the women as the “progenitors of the soil,” and makes them, the elders said, “the Caretakers of the land, water and air of Turtle Island. As the trustees, we are obligated to preserve and protect the land’s integrity for the future generation.”6

In the same year, another Six Nations woman, Hazel Hill, informed local newspapers in Grand River and Caledonia that the controversy that had erupted over a land reclamation near Caledonia was not just a question of ownership, but a conflict between two laws, one that has served oppression and another higher and much older law:

It’s not about disrespecting […] the laws of Canada, but more importantly about respecting […] the Universal Law given to us by the Peacemaker and Gigonsaseh, and upholding our responsibilities as individuals in accordance with that law [….] It’s not about an occupation, but about asserting our jurisdiction.7

Canadians of European heritage may find it easier to understand these appeals to a system of justice higher and more ancient than the law of the Canadian state if they remember a story that forms part of their own heritage. It is the story of Antigone, a daughter of the royal house of Thebes, as told by Sophocles, one of the great tragic playwrights of ancient Greece, four and a half centuries before the beginning of our Common Era.

Antigone’s two brothers quarrelled over the throne of Thebes. One, who was banished, returned with an army and attacked the city. When the brothers killed each other in battle, their uncle, who became king, proclaimed that the one who had defended the city should be buried with due honours, while the other’s corpse should rot outside the city and be consumed by dogs and carrion birds—and anyone who gave the body burial rites should die.

It is made clear that the king’s decree violated a primal order of justice. Carrion-eating animals and birds refused to touch the corpse; then, after Antigone defiantly gave it burial rites, which the king reversed, exposing the dead body again, the carrion-eaters gorged themselves and vomited the rotting flesh onto the altars of the city’s temples.

At a central moment in the play, Antigone tells the king that his law went against the highest god, Zeus, and against an order of Justice higher than any decree of the state. I quote from Robert Fagles’ translation:

It wasn’t Zeus, not in the least,
who made this proclamation—not to me.
Nor did that Justice, dwelling with the gods
beneath the earth, ordain such laws for men.
Nor did I think your edict had such force
that you, a mere mortal, could override the gods,
the great unwritten, unshakable traditions.
They are alive, not just today or yesterday:
they live forever, from the first of time….8

Set aside this tragedy’s lurid details: its central conflict, between a law arrogantly and unjustly proclaimed by the state, and a higher sense of justice, of “unshakable traditions” that Antigone courageously obeys in principled resistance to the state’s brute force, has a familiar ring.

The women of the Six Nations, and the Mi’kmaq women who have taken a stand, together with their menfolk, in opposition to fracking exploration in New Brunswick, are sisters of Antigone.

Sequel: An Exchange with Garry Horsnell

Local historian Gary Horsnell offered a response to this op-ed, to which I replied.

Garry Horsnell’s response:

When it comes to the Mi’kmaq in the eastern provinces of Canada, they and other First Nations (Indian) bands in that area made a Peace and Friendship Treaty in 1760/61. Here is an excerpt from that 1760/61 treaty:

We the said Saugaaram als Loron Arexus Francois Xavier and Megamumbe Delegates from the said Tribes of Penobscot Naridgwalk St. Johns, Cape Sables and other Tribes inhabiting within His Majesty’s said Territories of Nova Scotia or Accadie and New England So in the Name and behalf of the said Tribes we represent acknowledge his Said Majesty King Georges Jurisdiction and Dominion over the Territories of said Province of Nova Scotia or Accadie and make our Submission to his Said Majesty in as ample a manner as We have formerly done to the Most Christian King.

The Mi’kmaq joined that treaty later, but the Indians agreed the Crown would reserve “Jurisdiction and Dominion over the Territories.”

Here is another excerpt from that 1760/61 treaty: “And we further promise in behalf of the said Tribes we represent that the Indians shall not molest any of His Majesty’s Subjects or their Dependants in their Settlements already or lawfully to be made or in their carrying on their Trade and other affairs within said Province”.

The Mi’kmaq in New Brunswick can protest peacefully against fracking in New Brunswick but it is against the Criminal Code of Canada to cause mischief by blocking roads, highways, other thoroughfares or access to property.

In 2010, the government of Nova Scotia signed an agreement to consult with the Mi’kmaq in Nova Scotia but I doubt that would affect the Mi’kmaq in the separate Province of New Brunswick.

In the 2004 Haida case, the Supreme Court of Canada said that “Third parties cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate. The honour of the Crown cannot be delegated, and the legal responsibility for consultation and accommodation rests with the Crown.” The Crown now includes only the Canadian federal government (the big Crown) and provincial government (the little Crowns). Municipalities and private developers are not the Crown and are not obliged to consult with Indian bands.

I would think the New Brunswick government (a little Crown) should consult with the Mi’kmaq in New Brunswick about fracking but, in section 48 of the 2004 Haida case, the Supreme Court of Canada also said, “This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim.”

My reply:

I don’t think Garry Horsnell has adequately understood the historical and legal issues he alludes to. I’ll go over them briefly.

By 1760 France, with whom the Mi’kmaq had been in alliance during part of the 1750s, had been decisively defeated in North America by the British. In the Peace and Friendship Treaty of 1760-61 from which Horsnell quotes, the Mi’kmaq did indeed acknowledge King George III’s political sovereignty, his “Jurisdiction and Dominion,” over Nova Scotia (which at the time also incorporated the present-day province of New Brunswick). But according to what I believe is a large majority of contemporary expert interpreters, this didn’t involve giving up what we now call aboriginal title to the land they inhabited, or their rights to its resources.

The point seems obvious enough. When George III at the same time asserted sovereignty over the province of Québec, he wasn’t cancelling and erasing the existing system of land tenure and ownership. The British did of course put native people and settler populations (whatever European language they spoke) into different categories; and they made clear their intention to engage in what the Royal Proclamation of 1763 termed the “speedy settling” of their newly conquered colonies. But the aim of the policies the British announced in the early 1760s was to pacify those colonies, not to drive the French-speaking or the native people into acts of desperate resistance by declaring that they had no rights to their ancestral lands.

The treaties made by the British with the Maliseet and Mi’kmaq in 1726, 1752, and 1760-61 promised, explicitly or implicitly, the protection of their fishing, hunting, and planting grounds. (Such an interpretation, the Supreme Court stated in its 1999 Marshall decision, is required “to uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people.”) And the Royal Proclamation of 1763 declared that “the several Nations or Tribes of Indians, with whom We are connected, and who live under Our protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds….”

The Proclamation acknowledged native rights by setting out procedures, “to the End that the Indians may be convinced of Our Justice,” by which native lands could be purchased by colonial governments from specially summoned assemblies of the native people concerned, and it forbade any unauthorized form of land surveying and land transfer. These provisions applied not just to the territories west of the Thirteen Colonies, but to “any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.”

There is ongoing debate among experts and in the courts over the precise meaning and applicability, in different contexts, of aboriginal title and resource rights. But it’s an uncontested fact that within a few decades after 1761 the Crown’s treaties with the Mi’kmaq were being systematically dishonoured by colonial (and subsequently Canadian) governments. Mi’kmaq lands were appropriated as private property or Crown land without any form of agreement or purchase as outlined in the Royal Proclamation. But the dishonouring of the treaties doesn’t alter their legal force.

I think Garry Horsnell and I would agree that people really ought to obey the law. (I also believe—as I indicated by quoting Martin Luther King and Sophocles—that in cases where the law is manifestly unjust or iniquitous, people have a right, indeed a moral obligation, to disobey it.)

In the Elsipogtog case, obedience to the law should have begun with the Crown exercising its duty to consult. Horsnell’s view that this duty was somehow merely optional for the New Brunswick government reveals an inadequate understanding of the basic principles of common law.

The relevant court decision here is the July 2008 judgment of the Ontario Court of Appeal in the case of Frontenac Ventures Corporation v. Ardoch Algonquin First Nation. As Annie Leeks of the law firm Blake, Cassels & Graydon has written, the Court of Appeal surveyed two decades of Supreme Court jurisprudence in its attempt to weigh asserted aboriginal rights against the interests of a uranium mining company:

The court found that this clear line of jurisprudence required that where constitutionally protected aboriginal rights are asserted, “injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests”. The Court of Appeal cautioned in particular that if the injunction is intended to create a “protest free zone” for contentious private activity that impacts upon an asserted aboriginal right, the court must be extremely careful to ensure that the duty to consult with the First Nation has been fully and faithfully discharged and that every effort has been exhausted to obtain a negotiated or legislated solution.9

Barring a contrary decision by Parliament or the Supreme Court, that’s the law of the land. Wouldn’t it be nice if New Brunswick felt like obeying it?

And in the absence of the legally required consultation, doesn’t it look rather as though the provincial government, the fracking exploration company, and the RCMP were molesting the Mi’kmaq, and not the other way round?